Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 197 (CAL)

Anis Reza v. Pran Ballav Kundu & State

2001-04-09

Malay Kumar Basu

body2001
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the order dated 21st November, 1998 passed by the ld. Additional Sessions Judge, Alipore in Criminal Motion No. 206 of1998 whereunder a revisional application filed by the petitioner challenging the order dated 18th March, 1998 passed by the ld. Judicial Magistrate, IXth Court, Alipore in complaint case No. C832/97 under section 138 of the Negotiable Instruments Act was dismissed. The case of the petitioners, Sri Anis Reja and Sri Goutam Chatterjee, is in short as follows. They are the partner of M/s. Classic Construction and in course of business transaction they issued two cheques worth Rs. 50,000/- in favour of respondent No.1 Sri Pran Ballav Kundu who presented the same to Indian Overseas Bank but the cheques were returned by the Banker with the endorsement. "Insufficient Funds" with a memorandum dated 4th March, 1997 issued by the Punjab National Bank, Dharmatala Branch and returned to the respondent No.1 who received it on 7th March, 1997. Thereafter the respondent No.1 issued a demand notice through his Advocate on 11th March, 1997 by registered post with AID but the same was returned to the said Advocate with postal endorsement, "Not Claimed". No payment having been made against such demand notice, the said respondent filed the above-mentioned complaint before the Court of SDJM, Alipore on 11th April, 1997 being case No. C832/97 .The petitioners as the accused in that case entered their appearance before the Court in connection with that case on 20th November, 1997 and then the case was transferred to the Court of IXth Judicial Magistrate, Alipore for trial. On 17th February, 1998 which was the date fixed for appearance of the parties in that case the petitioner accused filed an application before the court praying for their discharge on the ground that the notice under section 138(b) had not been served properly and after hearing both sides Id. Magistrate rejected that application and being aggrieved thereby they preferred a revisional application there against before the Court of Sessions Judge at Alipore (Criminal Motion No. 206 of 1998) which was also dismissed by the Id. Sessions Judge by his order dated 21st November, 1998 and being aggrieved by that order they have preferred the present revisional application before this Court. Sessions Judge by his order dated 21st November, 1998 and being aggrieved by that order they have preferred the present revisional application before this Court. 2.The contention of the petitioners is that they could not come to know about the alleged bouncing of the cheques in question since they did not receive any notice which under the law is required to be actually served on them in writing by the respondent before he could initiate a proceeding under section 138 of the N.I. Act. According to the petitioners the purpose of giving such a notice to the drawer of the cheques is to provide him with an opportunity to make payment or arrange for making payment by depositing sufficient amount in his Bank Account within 15(fifteen) days from the date of receipt of such notice. It is the requirement of law that such a notice must be actually served upon the drawers of the cheque in question, but in this case no such actual service of the said notice was at all effected and consequently the petitioners had no knowledge about such notice. The remark put by the postal peon, "Not Claimed" on the body of the envelope containing the notice does not amount to service of notice. The respondent could have presented the cheques once again to the bank, because a cheque can be presented to the bank any number of times within the period of its validity or within six months whichever is earlier, but he did not select to do that and instead he played a foul game by keeping the petitioners in the darkness in respect of the demand notice. It is the further contention of the petitioners that as per the settled legal position unless there is service of proper demand-notice as contemplated under section 138(b) of the N.I. Act, no such proceeding can be initiated and the proceeding that has been initiated in the absence of service of such notice is clearly an abuse of the process of law. According to the petitioners the Courts below fell into error by not considering this aspect of the law and the impugned order being illegal and erroneous is liable to be set aside. 3. According to the petitioners the Courts below fell into error by not considering this aspect of the law and the impugned order being illegal and erroneous is liable to be set aside. 3. The main question that has been raised in this revisional application is whether the remark of the postal peon on the body of the envelope containing the notice as "Not Claimed" should be treated as good service of the notice or not and, if not, whether the petitioner-accused was entitled to be discharged before being examined under section 251 Cr. P.C. by learned Magistrate on the ground that the payee of the cheque, i.e. the complainant had failed to make a demand for payment of the amount in question within the prescribed period of fifteen days of the receipt of the information by him from the bank regarding return of the cheque as unpaid. 4. Mr.Ghosh, ld. Advocate for the petitioner has drawn my notice to a further line of remark of the postal peon on the envelope in addition to the remark "NC" (Not Claimed). This is, "Not present for intimation". According to Mr. Ghosh, both the remarks taken together make it abundantly clear that the notice in question was not actually served on the drawer of the cheque and was returned unserved to the sender and thus the requirement of section 138(b) that the notice must be given to him within 15 days having not been complied with, the complaint was not legally maintainable and the petitioner-accused was entitled to be discharged. Section 138 of the N.I. Act, 1881 runs as follows. Section 138 of the N.I. Act, 1881 runs as follows. "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharging, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee of the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." 5. The learned Advocate for the O.P. has argued that this question as to whether the notice should be taken as actually served on the accused or not in the context of the postal peon's above mentioned remarks is a question of fact and the trial Court was to arrive at a finding only after taking and considering the evidence that may be added on this point and that can be possible only at the time of trial of the case and therefore the petition ofthe accused for discharge at the stage of his examination under section 251 Cr. P.C. was clearly premature and untenable. 6. In support of his contention he has relied upon a decision of the Apex Court reported in (1999) 7 SCC 510 (K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr.). It has been held in this case as follows: The context envisaged in section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to section 138 of the Act show that the payee has the statutory obligation to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does...... If a strict interpretation is given then the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice at the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. .......... .............. ............. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him. .......... ............. ............. Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in section 27 of the General Clause Act, 1897, can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not such responsible for such non-service. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not such responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. ............. ............... Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. 7. Thus we see that by this decision the Apex Court as very aptly laid down the law on the subject which is under our consideration in this case. According to their Lordships' views, the fact of return of a registered letter from the post office with the remark of the postal employee "Not Claimed" should be interpreted in terms of the provisions of section 27 of the General Clauses Act which provides that where any Central Act or Regulation authorises or requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Therefore it has been ruled by their Lordships that in view of such remarks of the postal peon the letter should be deemed to have been served on the sendee unless of course he proves that it was not really served and that he was not responsible for such non-service. Therefore it has been ruled by their Lordships that in view of such remarks of the postal peon the letter should be deemed to have been served on the sendee unless of course he proves that it was not really served and that he was not responsible for such non-service. In the instant case therefore simply on the basis of written remarks of the postal peon on the body of the envelope it will not be permissible under the law to draw a presumption or to take it for granted that the letter was not really presented to the addressee or it was not brought to his knowledge unless and until he proves it. It has been contended by Mr. Ghosh that in view of an additional remark of the postal peon by the side of the aforementioned remark to the effect that the addressee was not present for intimation, his client has nothing more to prove in that direction and such remark alone is sufficient to lead the Court to come to a finding that the petitioner was not in the know of such service. But this contention is not acceptable. Any entry or any writing on any document cannot be worth being looked into or relied upon by a Court unless the same is taken as a piece of evidence particularly when the genuineness of such entries is challenged or disputed. The truth or otherwise of such entries has to be ascertained by means of examination of their maker or by any other suitable means and so long as such examination and, for that matter; cross-examination of that author of the writings is not held, or other convincing proof is not furnished, such remarks should not be taken as sacrosanct or gospel truth. Therefore, the question raised by the petitioner that he is entitled to be discharged in view of the reason that notice of dishonour of the cheque has not been sent to him within the prescribed time cannot be determined without trial of the case when there will be scope for the parties to substantiate their respective stands by adducing evidence. Therefore, the question raised by the petitioner that he is entitled to be discharged in view of the reason that notice of dishonour of the cheque has not been sent to him within the prescribed time cannot be determined without trial of the case when there will be scope for the parties to substantiate their respective stands by adducing evidence. One should not miss the note of caution given by their Lordships in the above mentioned ruling [ (1999) 7 SCC 510 ) that a trickster cheque-drawer may resort to clever strategies to escape the legal consequences of non-compliance with the provisions of section 138 of the Act, if the Court adopts a liberal interpretation which helps a dishonest evader clip an honest payee-thereby defeating the very legislative measure. 8. The above discussion boils down to the position that the petitioner-accused will have to prove that the notice was not really served upon him and further that he was not responsible for such non-service (vide para 24 of the Apex Court judgment cited above). Such proof can only be furnished during trial of the case after the examination of the accused under section 251 Cr. P.C. Therefore, I do not find any illegality or impropriety in the impugned orders under which such a prayer of the petitioner was turned down and hence the same be affirmed. The revisional application be dismissed. The learned Trial Court shall proceed with the trial of the case in accordance with the law and in the light of the observations made above as expeditiously as possible, preferably within a period of six months from the date of communication of order. 9. Lower Court records be sent down to the court below at once. Revisional application dismissed.